CUNA MBD Council Coverage: With CUs ‘Under Siege’ From ADA Suits, Here's What to Do

SAN FRANCISCO–Credit unions are “under siege” when it comes to being sued over alleged violations by their websites of the Americans With Disabilities Act.

One attorney is offering some advice and a checklist on how to respond, and cautioning that it doesn’t appear any quick fix is in the offing.

Michelle Anderson, a partner in Fisher Phillips in New Orleans and who is also licensed to practice in Florida, said ADA cases are being filed at a rate of three- to four-dozen per day nationally, particularly in the Southern District of Florida. Those cases include alleged ADA violations related to physical facilities.

“I also understand the rate of demand letters that credit unions are receiving are far exceeding the rate of litigation,” said Anderson in remarks before the CUNA Marketing and Business Development Council meeting here.  “Typically, these are firms that do this for a living. There is no recovery to that individual plaintiff. The recovery goes to the lawyer.”

At issue are alleged violations of Title III of the ADA and the requirement that people should be able to use places of public accommodation without limitations. The law requires businesses to make accommodations that are “readily achievable,” a term Phillips acknowledged is “unfortunately rather amorphic.”

“Many small businesses have limited resources. But the resources of larger businesses such as credit unions mean what is readily achievable is different for you,” Anderson said.

Anderson told credit unions it’s unlikely the issue of lawsuits against credit unions over alleged ADA violations will be resolved any time soon, noting a few attorneys have turned ADA lawsuits into a “cottage industry.” Those attorneys use a stock complaint and then “stick their hand out” for fees and costs. The same named plaintiffs are seen repeatedly in the filings. We are looking at your financial resources vs. the cost of compliance. Have you made any changes, and would you be subject to the law based on when those changes were made.

“Unlike the employment side where you have to go to the EEOC and have to file a right to sue before you can sue, there is no such requirement under Title III of the ADA,” said Anderson. “Those of you getting demand letters under the ADA, count your blessings. They are under no obligation to send you a demand letter.”
What can a credit union do if sued?

First, recognize it can’t “unring” the bell, said Anderson. The options are:

• Fix it and fight
• Not fix it and just fight
• Resolve the ligation prior to trial
• Go to trial

“What presents an issue in resolving the litigation prior to trial is there is not a lot of case law here,” said Anderson. “When you don’t have the deep pockets, that is the strategy there.”

Differing Opinions

Is a website a place of public accommodation? That depends on which court is making the ruling.

Courts in the 1^st, 2^nd and 8^th circuits have joined with the Department of Justice in saying yes.

Courts in the 3^rd, 6^th, 9^th, 11^th circuits have said no, ruling that “Unless the website is heavily integrated with the brick-and-mortar stores and operates in many ways as a gateway to the stores,” it is not, the 9^th circuit ruled, or unless the website has a nexus with the physical location, as the 6^th and 11^th circuits have ruled.

The remaining circuits have said there is insufficient case law. Courts in Texas and Virginia have dismissed ADA lawsuits against credit unions.

“Depending on where you are in the country, you have spent a lot of money to get through discovery, depositions, consultants, and reports to get to the point where you say as a matter of law the plaintiff loses,” Anderson said. “A lot of times we don’t get to that point because we don’t have the stomach for the length of the litigation.”

Bittersweet Scenario

Even an issue that has worked in credit unions’ favor­–that courts have ruled many plaintiffs don’t have standing to sue–is bittersweet, with Anderson noting it can be a “drawn-out process” to get there.

“The DoJ has taken the position for years that websites are covered under the public accommodation laws of the ADA without actual regulations to fall back on,” observed Anderson. “Now, they have withdrawn the proposed rulemaking” related to the DOJ’s 2010 proposal on how the ADA applies to website accessibility. “I don’t know if that concerns you as much as it concerns me as a taxpayer, we’ve had a government agency out there enforcing laws without regulations, telling us we’re doing it wrong and then in last few months we are told ‘Never mind, we’re not going to do that now.’”

As CUToday.info reported, in late 2017 the DoJ rescinded two Advanced Notices of Proposed Rulemaking related to website accessibility.

“In order for this to go to Supreme Court there has to be a case that lives long enough to get to that level,” said Anderson. “Unless you have a lot of money to throw at that litigation, most of us say we’re going to fix it and move on.”

Common Allegations

According to Anderson, the common allegations in ADA lawsuits include:

• Websites fail to accommodate those with hearing, visual or kinesthetic impairments.
• User is unable to use a mouse and must navigate with a keyboard, touchscreen or voice recognition.
• User is unable to use screen reader or specialized software to magnify the content of a page, have it read aloud, or to display the text using a braille reader.
• User is unable to hear information on the website, audio content does not include closed caption, or images to not include captions.

How can a credit union improve website accessibility, according to Anderson:

• With videos that include audio, provide captions, or provide a full text transcript of the video or a version of the video with a text description. Also include a mechanism to stop, pause, mute or adjust volume.

With non-text content, Anderson recommended:

• Add a text alternative to all of your images.
• Add a text alternative to your audio and video (a succinct description of the topic).
• Add a name to all of your controls, such as “Search” or “Submit.”

With text content, Anderson recommended credit unions break up content with subheads for new sections.

With the use of color on the website, Anderson said CUs should:

• Use more than color to communicate instructions
• Use more than color to communicate other critical information, such as charts and graphs
• Distinguish text links from surrounding text with a clear contrast between the link and the surrounding text that uses at least a ratio of 3:1, then add another differentiator

What should credit unions be doing now in terms of defending against the risk of ADA lawsuits? According to Anderson:

• Weigh the risks of litigation with the costs of compliance
• Consult an expert in web design who is well versed in ADA compliance
• Understand that once the DOJ commences action or a private suit is filed, it can be hard to stop the momentum
• Don’t forget about the ADA claims related to the physical location

“If what you need to do is just about spending thousands of dollars to do what’s necessary, it’s going to be hard to argue it’s not readily available,” said Anderson.

Also Worth Remembering

Anderson said CUs should keep these other things in mind, as well when it comes to physical facilities:

• Installing ramps
• Making curb cuts in sidewalks and entrances
• Repositioning shelves
• Rearranging tables, chairs, display racks and other furniture
• Repositioning telephones
• Adding raised marketing on elevator control buttons

She also urged credit unions to look to the resources available through their associations, including CUNA and NAFCU, both of which have been advocating for clarity on the DOJ’s stance.